RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:		DOCKET NUMBER:  BC-2007-01440
		INDEX CODE: 112.10
 	XXXXXXX				COUNSEL:  
			  		HEARING DESIRED:  YES

MANDATORY CASE COMPLETION DATE: 11 NOVEMBER 2008

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APPLICANT REQUESTS THAT:

1.  His reenlistment eligibility (RE) reason of "ineligible for reenlistment" be removed or replaced with "eligible for reenlistment" in block 26 of his NGB Form 22.

2.  His narrative reason for separation (Unsatisfactory Performance) be changed.

3.  He receive a DD Form 214, Certificate of Release or Discharge from Active Duty for the period he served in support of Operation Noble Eagle.

4.  He be granted clemency to reclaim his military status and rank as if he had never been discharged.

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APPLICANT CONTENDS THAT:

The narrative reason he received was unjust when considering the totality of the circumstances, in particular, his records prior to the conduct that resulted in his discharge decision.  He was not afforded the opportunity to demonstrate rehabilitation.  He also repaid the outstanding financial obligation before discharge actions were ensued against him.  In addition, if he had been counseled that a discharge with "ineligible to reenlist" remarks would be permitted with an honorable service characterization, he could have rebutted the basis for his discharge and presented evidence of his entire military career, demonstrated rehabilitation, and could have petitioned Air Force leadership to deny the discharge and retain his services.  The "ineligible to reenlist" derogatory statement changed the terms he agreed to when he waived his rights to challenge the discharge pending receipt of "no less" than an honorable discharge.  It was also an error for him not to receive a DD Form 214 to accurately account for the honorable military service provided to his country in a time of war.  In addition, he is requesting the Board's favorable consideration for clemency in order to grant his prayers for relief and facilitate his eligibility to reclaim his military status and rank as if he had never been discharged so he can continue to fight in the global war on terrorism.  If his squadron had acknowledged that he honored his pledge to repay the debt, sufficient mitigating circumstances, including but not limited to his Marine and Air Force record, and recent promotion, would have warranted a hearing board to conclude he should not be discharged.  Moreover, in order to avoid injustice, a neutral board would have had the opportunity to conclude he warranted an opportunity at a second chance to prove he was fit to serve.  His counsel did not ensure his squadron characterized his repayment properly, his counsel did not insist that his squadron acknowledge he had paid the debt in full, thereby negating a chief basis for the discharge.  Finally, his counsel's representation of the honorable discharge vs. conditional rights waiver nuances failed to prepare him for the fact he may receive an honorable discharge yet still be classified as ineligible to reenlist in the Air Force.  It is a manifested unjust result when someone does not understand he or she may never be eligible to serve in the uniform again, notwithstanding the fact that the character of service is deemed honorable.

In support of his request, the applicant submits a letter from his counsel; addendum of exhibits, and exhibits in support of his application. 

His complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

Data extracted from the personnel data system reflect on 9 October 1991, he enlisted in the Air National Guard.  On 15 May 1995, the applicant enlisted in the United States Marine Corps (USMC).  On 15 May 1999, he was honorably discharged from the USMC and transferred to the USMC Reserves. On 27 July 1999 he enlisted in the Air National Guard.  On 7 Feb 2004, he was notified by his commander of his intent to recommend he be discharged from the Air National Guard (ANG) under the provisions of AFI 36-3209, Separation Procedures for Air National Guard and Air Force Reserve Members, paragraph 3.18, Unsatisfactory Performance, to include 3.18.1 (Substandard Duty Performance) and 3.18.4 (Irresponsibility in the Management of Personal Finances); and paragraph 3.21, Misconduct, to include 3.21.2.4 (Failure to Meet Financial Obligations) and 3.21.3 (Commission of a Serious Offense).

The specific reasons for these actions were that he dishonorably failed to make timely payments on the Government Travel Card (GTC) by failing to make scheduled payments on his debt and for being over 60 days past due of his obligation.  Also, at divers times during September 2003, he violated a lawful general regulation, to wit:  paragraph 5.7, HQ FLANG Instruction 65-104 dated April 2000 by wrongfully using his GTC for other then official military/government related duties. 
On 8 Feb 2004, his commander reviewed the applicant's conditional waiver and acknowledged the applicant wished to waive his rights to an administrative discharge board conditional on receiving an honorable characterization of service.  The commander considered his duty performance while in the unit and recommended acceptance of his conditional waiver request.

On 30 April 2004, he was discharged from the ANG for unsatisfactory performance.  His RE read “Ineligible" and his service was characterized as honorable.

He completed 12 years of satisfactory service.

The ANG is working with HQ ARPC to issue the applicant his DD Form 214 for his service in support of Operation Noble Eagle.

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AIR FORCE EVALUATION:

NGB/A1POFC recommends partial relief.  A1POFC states the applicant was discharged from the Florida National Guard (FLANG) on 30 April 2004 for misuse of his government travel credit card.  The state of Florida adhered to all policies and procedures within the administrative discharge process.  The applicant submitted a conditional waiver which was accepted by the state. In this waiver, he waived his rights to a discharge board hearing in exchange for an honorable discharge.  The state is correct in stating he did not have an option to place a condition on reenlistment eligibility.  Reenlistment eligibility determination is solely at the discretion of the commander, who made the natural decision to deem the member ineligible.  Under no circumstances would an individual who had committed these offenses be considered for enlistment in the Air National Guard.  Regarding his request for clemency, no such consideration exists in the administrative discharge process, therefore, this office does not recommend relief regarding request for clemency or changing reenlistment eligibility.  The applicant is also requesting DD Forms 214 for service performed in support of Operation Noble Eagle.  No evidence exists that DD Forms 214 were issued for this service.  The applicant is entitled to DD Forms 214 for the period of service performed and the state acknowledges that an error occurred by not issuing them; therefore, this office recommends relief regarding this issue.  

The complete A1POFC evaluation is at Exhibit B.

NGB/A1POF concurs with A1POFC and recommends relief be granted regarding the issuance of DD Forms 214 but recommends denial of relief to change his reenlistment eligibility, narrative summary and clemency. The complete A1POF evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant's Counsel responded stating he does not believe the FLANG letter appreciates the mitigating circumstances presented in his petition for relief, including the fact that the attorney who handled the case did not counsel him that his conditional waiver would forever deny him the opportunity to re-enlist.  The conditional waiver he signed did not indicate it would be diluted with a prejudicial RE code.  His attorney did not provide full disclosure that the conditional honorable discharge would include additional language, not seen in the waiver that would forever deny him the opportunity to reenlist. In addition, the FLANG misunderstands his prayer for clemency.  He wants the Board to understand he accepts responsibility for his actions and wants to continue to serve his country and respectfully requests the board grant clemency so he can re-enlist and support the war effort.

The complete response is at Exhibit E.

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THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or regulations.

2.  The application was timely filed.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice regarding the applicant’s request for change to his reenlistment eligibility and the narrative reason for his separation.  The Board took notice of the applicant's complete submission in judging the merits of the case, however, the Board found no errors in the discharge processing, no evidence that he was denied rights to which he was entitled and it appears the RE assigned and narrative reason for separation are appropriate and correct.  Therefore, the Board agrees with the Air Force offices of primary responsibility that he has not been the victim of an error or injustice in connection with these requests.  The Board notes that HQ ARPC has taken action to issue him a DD Form 214 reflecting his service during Operation Noble Eagle.  In the absence of evidence to the contrary, the Board finds no compelling basis to recommend granting the relief sought in this application.

4.  The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved.  Therefore, the request for a hearing is not favorably considered.

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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application.

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The following members of the Board considered Docket Number BC-2007-01440 in Executive Session on 8 November 2007, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 26 April 2007, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C   Letter, NGB/A1POF, dated 17 September 2007.
    Exhibit D.  Letter, SAF/MRBR, dated 21 September 2007.
    Exhibit E.  Letter, Counsel, dated 19 October 2007.